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SCA/24958/2007 2/ 8 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 24958 of 2007
=========================================================
MANUBHAI
MOTIBHAI SOLANKI - Petitioner(s)
Versus
THE
AGRICULTURAL PRODUCE MARKET COMMITTEE & 2 - Respondent(s)
=========================================================
Appearance
:
MR
SHALIN N MEHTA for
Petitioner(s) : 1,
NOTICE SERVED BY DS for Respondent(s) : 1 -
2.
MR MK VAKHARIA for Respondent(s) :
3,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE H.K.RATHOD
Date
: 28/03/2008
ORAL
ORDER
Heard
learned advocate Mr. SN Mehta on behalf of petitioner, learned
advocate Mr. MK Vakharia on behalf of respondent.
The
brief facts of the present petition are as under:
?SThe
present petitioner is working as a Chowkidar/Watchman in the Market
Yard of the Agricultural Produce Market Committee, Bevla. By way of
the present petition under Art. 226 of the Constitution of India,
the present petitioner seeks the following:
(a) That
the present petitioner be paid full wages with all consequential
benefits with effect from 8/1/2007.
(b)That
the present petitioner be paid wages for public holidays, with
effect from 8/1/2007.
(c)
That the present petitioner be paid full wages on the first day of
every month.
(d) That
the present petitioner be allowed to mark his attendance in the
attendance register.
(e) That
the Agricultural Produce Market Committee, Belva the present
respondent no. 1, be directed to fully implement the award dated
16/9/2000 passed by Labour Court, Ahmedabad in Reference (LCA) No.
343/1987 which is affirmed by a Division Bench of the High Court of
Gujarat vide oral order dated 28/3/2005 passed in Letters Patent
Appeal No. 1408/2003.
*Prior
to 1985: The present petitioner was appointed as a
Chowkidar/Watchman by the present respondent No. 1 Agricultural
Produce Market Committee, Bevla.
*1/9/1985 : The
present petitioner was orally terminated by the Agricultural Produce
Market Committee, Bevla.
*11/2/1987 : After
failure of conciliation proceedings, the industrial dispute raised
by the present petitioner was referred by State Government for
adjudication to the Presiding Officer, Labour Court, Ahmedabad.
*16/9/2000 : After
hearing the rival parties, the Labour Court, Ahmedabad, passed an
award directing the Agricultural Produce Market Committee, Bevla, to
reinstate the present petitioner in service and to pay him 35% back
wages with all other consequential benefits.
*2001 : The
said award was challenged by the Agricultural Produce Market
Committee, Bevla by filling Special Civil Application no, 8070/2001
in this Honourable High Court.
*26/8/2003 : Special
Civil application No. 8070/2001 filed by the Agricultural Produce
Market Committee, Bevla was dismissed.
*September,
2003 : Letters Patent Appeal No. 1408/2003 was filed by
the Agricultural Produce Market Committee, Bevla, against the oral
order dated 26/8/2003 passed by a Learned Single Judge of this
Honourable High Court in Special Civil Application No. 8070/2001.
*28/3/2005 : The
Letters Patent Appeal of the Agricultural Produce Market Committee,
Bevla was dismissed.
*February,
2006 :Misc. Civil Application no. 436/2006 was filed by
the present petitioner in this Court complaining of the willful and
deliberate breach and non compliance of the order dated 28/3/2005
passed by a Division Bench of this Honourable High Court in Letters
Patent Appeal.
*8/1/2007 : After
some correspondence between the present petitioner and respondents,
the present petitioner was allowed to resume service with respondent
Market Committee as a Chowkidar/Watchman.
*17/7/2007 : The
present petitioner wrote to the Secretary of the Market Committee
complaining about not being paid wages of a permanent employee of
the Market Yard.
*2/8/2007 : The
present petitioner’s Union addressed a letter to the Market
Committee complaining of the harassment meted out to the present
petitioner by not allowing the present petitioner to mark his
attendance in the attendance register.??
Being
aggrieved by illegal action of the Market Committee, present
petition is filed by petitioner.
The
prayer made in this present petition to direct respondent no. 1, 2
and 3 to pay full wages with all benefits w.e.f. 8/1/2007 to present
petitioner and also to direct the respondent to pay wages for public
holidays to present petitioner and also direct that every month on
first day salary is to be paid to petitioner by respondent without
any delay and also to mark daily attendance of the present
petitioner in attendance register and fully implement the award of
Labour Court, Ahmedabad dated 16/9/2000 in reference (LCA) No.
343/1987 and to restrain the present respondent from terminating
service of present petitioner.
The
affidavit in reply is field by respondent no. 3 raising contention
that petitioner was working as daily wager with respondent.
According to respondent, petitioner was asked to mark his presence
in the register maintain for daily wagers employees, which he
refused to do so and therefore, the respondent was constrained not
to pay salary to him as he has neither marked his presence in the
register deliberately, nor has he discharged his duty. The service
of the petitioner is not terminated by respondent. Therefore,
according to respondent, petitioner is not prepared to signed muster
of daily wager and accordingly he has not worked and salary was not
paid.
Learned
advocate Mr. Mehta submitted that whatever contentions raised by
respondent in his reply, that has been decided by Division Bench of
this Court in LPA no. 1408/2003 in SCA no. 8070/2001 in Civil
Application no. 10588/2003 dated 28/3/2005, which is at page 66,
relevant order of the Division Bench is quoted as under:
?S Heard learned Counsel for the parties.
The appellant – Agricultural Produce Market Committee, Bavla, being aggrieved by the order dated 26.8.2003 passed in Special Civil Application No. 8070 of 2001, rejecting the said Special Civil Application is before this Court, submitting inter alia that the order passed by the learned Single Judge is bad, as it has not taken into consideration the evidence brought on the record and also tends to confirm the findings which otherwise were perverse.
After taking us through the entire record including the findings of the learned Labour Court, learned Counsel for the appellant submitted that the workman was a daily wager and therefore, the appellant was justified in discontinuing him.
On being asked that if he was a daily wager and/or a casual employee, then why the relevant evidence was not produced before the Labour Court at least to show that not on regular basis, but the salary was being paid to him intermittently, learned Counsel for the appellant submitted that such evidence has not been produced before the Labour Court.
After going through the complete records, we are unable to hold that the learned Labour Court was unjustified in observing that the workman was not a daily wager. The learned Single Judge has also recorded reasons for not making interference in the matter.
The endeavour of the learned Counsel for the appellant in fact was to persuade us to take a different view on the strength of the facts which are available on the record. In the opinion of this Court, if there is some evidence available to support the findings then simply because another view is possible, the appellate Court shall not interfere in the matter. We find no reason to interfere. The appeal is dismissed. Consequently, Civil Application No. 10588 of 2003 stands
rejected.??
In
light of the aforesaid decision given by Division Bench of this
Court, the decision of learned Single Judge is confirmed by Division
Bench of this Court. On being asked by Division Bench that if he was
daily wager and/or casual employee then why relevant evidence was
not produced before Labour Court by respondent. Therefore, Division
Bench of this Court has come to conclusion that Labour Court has
perfectly justified in observing that workman was not daily wager
employee.
In
view of the aforesaid back ground, when petitioner was not daily
wager as observed by Division Bench of this Court and award of
Labour Court is confirmed upto L.P.A. then stand taken by respondent
is not proper and respondent shall have to implement award
inquestion, which has been confirmed upto L.P.A.
Therefore,
it is directed to respondent to allow to petitioner to mark his
presence in attendance register as regular (permanent) employee and
to pay salary w.e.f. 8/1/2007 till 31/3/2008 within a period of one
month from the date of receiving copy of this order and also grant
public holidays with wages and to pay salary each month on the first
day or to pay salary along with regular employee without any delay.
It is further directed to respondent to fully implement the award of
Labour Court, Ahmedabad dated 16/9/2000 in reference no. 343/1987
which has been confirmed upto Division Bench and whatever benefit is
available to petitioner as regular employee (permanent) in pursuance
to implement of award, same shall have to grant and pay within a
period of six weeks from the date of receiving copy of this order.
Accordingly,
present petition is disposed of.
(H.K.RATHOD,
J)
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